Welfare and health decision making in the Court of Protection
Produced in partnership with Alex Ruck Keene of 39 Essex Street Chambers
Welfare and health decision making in the Court of Protection

The following Private Client practice note Produced in partnership with Alex Ruck Keene of 39 Essex Street Chambers provides comprehensive and up to date legal information covering:

  • Welfare and health decision making in the Court of Protection
  • The powers of the Court of Protection
  • When the court’s powers can be invoked
  • The limits to the court’s powers
  • Applications
  • Pre-issue
  • Evidence to be filed with the application
  • Issue and Case Management Conference
  • Section 49 reports
  • Final management hearing
  • More...

Note that this Practice Note does not address specific practice alterations caused by the COVID-19 pandemic. These are addressed in Practice Note: Coronavirus (COVID-19)—Court of Protection and mental capacity.

The powers of the Court of Protection

The Court of Protection has the power to make a decision or decisions as to the personal welfare of a person lacking the capacity (P) to take the decision(s) for themselves. The Court of Protection also has the power to appoint a deputy to make the decision(s) (see Practice Note: Choosing the deputy for further details), although health and welfare deputies are only relatively rarely appointed for the reasons developed by the Vice-President of the Court of Protection, Hayden J, in Re Lawson, Mottram and Hopton (appointment of personal welfare deputies). For analysis of this case, see News Analysis: Principles governing the appointment of personal welfare deputies (Re Lawson; Re Mottram; Re Hopton).

Alongside the powers set out above, the Court of Protection also has the power to make a declaration as to the lawfulness or otherwise of any act done or yet to be done in relation to a person lacking capacity to make the relevant decision(s). For these purposes, an 'act’ includes an omission and a course of conduct.

As a very general rule, questions relating to health matters are more usually raised by way of applications for declarations rather

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